NECESSITY, FUNCTION, AND CONFORMITY: KRS
194A.050(1) requires the secretary of the Cabinet for Health and Family
Services to promulgate administrative regulations necessary to operate programs
and fulfill the responsibilities vested in the cabinet, qualify for the receipt
of federal funds, and cooperate with other state and federal agencies for the
proper administration of the cabinet and its programs. 42 U.S.C. 1320a-7I
directs the secretary of the United States Department of Health and Human
Services to establish a program to identify efficient, effective, and
economical procedures for long-term care facilities or providers to conduct
background checks on prospective direct patient access employees on a
nationwide basis. On May 20, 2011, the Commonwealth of Kentucky was the twelfth
state to receive a National Background Check Program (NBCP) grant awarded by
the Centers for Medicare and Medicaid Services under 42 U.S.C. 1320a-7I. On the
date this amendment was filed with the Legislative Research Commission,
twenty-six (26) states and territories had received an NBCP grant. The Cabinet
for Health and Family Services, Office of Inspector General is charged with
responsibility to oversee and coordinate Kentuckyís fingerprint-supported NBCP
grant initiative. This administrative regulation establishes procedures for the
implementation of Kentucky's NBCP as a voluntary program. The conditions set
forth in this administrative regulation for voluntary KARES system participants
are in addition to the name-based, state only background check requirements of
KRS 216.533, 216.712(2), 216.787, and 216.789.

††††† (a) Applies for employment with an
employer identified in subsection (6) of this section; or

††††† (b) Is subject to background screening by
a professional licensing board that enrolls contingent upon approval by the
Federal Bureau of Investigation and Department of Kentucky State Police in the
Kentucky NBCP.

††††† (2) "Cabinet" means the Cabinet
for Health and Family Services.

††††† (3) "Criminal background check"
means a state and national fingerprint-supported criminal history background
check performed by the Department of Kentucky State Police (KSP) and the
Federal Bureau of Investigation (FBI) and includes a comparison of the
applicant's fingerprints with any fingerprints that may be on file with KSP or
the FBI.

††††† (4) "Disqualifying offense"
means:

††††† (a) A conviction of, or a plea of guilty,
an Alford plea, or a plea of nolo contendere to:

††††† 1. A misdemeanor offense related to:

††††† a. Abuse, neglect, or exploitation of an
adult as defined by KRS 209.020(4);

††††† b. Abuse, neglect, or exploitation of a
child;

††††† c. A sexual offense;

††††† d. Assault occurring less than seven (7)
years from the date of the criminal background check;

††††† e. Stalking occurring less than seven (7)
years from the date of the criminal background check;

††††† f. Theft occurring less than seven (7)
years from the date of the criminal background check;

††††† g. Fraud occurring less than seven (7)
years from the date of the criminal background check;

††††† h. Possessing or trafficking in a
controlled substance occurring less than seven (7) years from the date of the
criminal background check; or

††††† i. Any other misdemeanor offense relating
to abuse, neglect, or exploitation that is not listed in this subsection and
occurred less than seven (7) years from the date of the criminal background
check;

††††† 2. A criminal offense against a victim
who is a minor, as defined in KRS 17.500;

††††† v. Any other felony offense relating to
abuse, neglect, exploitation, drugs, theft, or fraud not listed in this
subsection;

††††† 5. An offense under a criminal statute of
the United States or of another state similar to an offense specified in this
paragraph; or

††††† 6. A crime described in 42 U.S.C.
1320a-7;

††††† (b) A substantiated finding of neglect,
abuse, or misappropriation of property by a state or federal agency pursuant to
an investigation conducted in accordance with 42 U.S.C. 1395i-3 or 1396r;

††††† (c) Registration as a sex offender under
federal law or under the law of any state; or

††††† (d) Being listed on a registry as defined
in subsection (10) of this section.

††††† (5) "Employee" means an
individual who:

††††† (a)1. Is hired directly or through
contract by an employer defined in subsection (6) of this section, and has
duties that involve or may involve one-on-one contact with a patient, resident,
or client; or

††††† 2. Unless excluded pursuant to Section
2(3)(c) through (e) of this administrative regulation, is a volunteer who has
duties that are equivalent to the duties of an employee providing direct
services and the duties involve, or may involve, one-on-one contact with a
patient, resident, or client; and

††††† (b) Has access to the personal belongings
or funds of a patient, resident, or client.

††††† (6) "Employer" means:

††††† (a) A long-term care
facility as defined in KRS 216.510;

††††† (b) A nursing pool as
defined in subsection (9) of this section providing staff to a long-term care
facility or provider;

††††† (c) An adult day health
care program as defined in KRS 216B.0441;

††††† (d) An assisted
living-community as defined in KRS 194A.700;

††††† (e) A home health agency
as defined in KRS 216.935;

††††† (f) A provider of
hospice care as defined in 42 U.S.C. 1395x(dd)(1) and licensed pursuant to KRS
Chapter 216B;

††††† (i) A provider of home
and community-based services authorized under KRS Chapter 205;

††††† (j) A staffing agency
with a contracted relationship to provide one (1) or more employers as listed
in this subsection with staff whose duties are equivalent to duties performed
by an employee pursuant to subsection (5) of this section;

††††† (k) Any other health
facility or service licensed pursuant to KRS Chapter 216B that applies to
participate voluntarily in Kentuckyís National Background Check Program; or

††††† (l) Any other provider licensed by the
cabinet for which a state and national background check is required as a
condition of employment.

††††† (7) "KARES system"
means the cabinetís secure, web-based application used to facilitate abuse
registry and fingerprint-supported state and national criminal background checks
for authorized users of the system.

††††† (8) "Kentucky National Background
Check Program" or "NBCP" means a background screening program
administered by the Cabinet for Health and Family Services, Office of Inspector
General to facilitate registry and
fingerprint-supported state and national criminal history background checks
conducted by the Department of Kentucky State Police and the
Federal Bureau of Investigation for the following:

††††† (a) Prospective employees of any
employer identified in subsection (6)(a) through (k) of this section that
participates voluntarily in the Kentucky National Background Check Program;

††††† (b) Any other individuals
required by state law or administrative regulation to submit to a state and
national background check as a condition of:

††††† 1. Employment; or

††††† 2. Licensure, certification, or
registration by a professional licensing board that enrolls contingent upon approval
by the Federal Bureau of Investigation and Department of Kentucky State Police
in the Kentucky NBCP; and

††††† (c) May include individuals
seeking approval as a kinship caregiver or foster or adoptive parent.

††††† (9) "Nursing pool" means a
person, firm, corporation, partnership, or association engaged for hire in the
business of providing or procuring temporary employment in or with a long-term
care facility or provider for medical personnel, including nurses, nursing
assistants, nursing aides, and orderlies.

††††† (c) Prospective cabinet staff who have or
may have one-on-one contact with a patient or resident of an employer defined
by Section 1(6) of this administrative regulation; and

††††† (d) Prospective employees seeking
employment with a private employer that participates voluntarily in the
Kentucky National Background Check Program.

††††† (2) This administrative regulation shall
not apply to current cabinet staff or current employees of any employer that
participates voluntarily in the Kentucky National Background Check program.

††††† (3) A prospective employee shall not
include:

††††† (a) An individual who independently
contracts with a KARES-participating employer to provide utility, construction,
communications, or other services if the contracted services are not directly
related to the provision of services to a resident, patient, or client of the
employer;

††††† (b) A physician, surgeon, dentist,
psychologist, psychiatrist, podiatrist, audiologist, ophthalmologist,
optometrist, dietician, therapist, phlebotomist, or any health care
practitioner who is licensed to practice in Kentucky and is under contract with
a participating employer in which a background check is required as a condition
of professional licensure;

††††† (c) A member of a community-based or
faith-based organization that provides volunteer services that do not involve
unsupervised interaction with a patient or resident;

††††† (d) A student participating in an
internship program; or

††††† (e) A family member or friend visiting a
patient or resident.

††††† Section 3. Continuous Assessment. (1) To
ensure that the information remains current in the KARES system, the cabinet
shall collaborate with the Department of Kentucky State Police (KSP) to
implement a mechanism for continuous assessment in which KSP:

††††† (a) Retains the fingerprints of an
individual screened under the Kentucky NBCP:

††††† 1. For a minimum period of five (5) years
from the date of fingerprint submission; and

††††† 2. On a five (5) year renewal basis
thereafter; and

††††† (b) Facilitates the retention of the
fingerprints by the FBI upon approval to participate in the FBIís Next
Generation Identification (NGI) rap back service.

††††† (2) Upon implementation of the process
for continuous assessment, the Department of Kentucky State Police may provide
notification to the cabinet of triggering events for each applicant after
initial processing of the applicant's criminal background check, subject to any
applicable administrative regulations of the Department of Kentucky State
Police and the FBI.

††††† Section 4. Enrolling in the Kentucky
NBCP. To enroll in the Kentucky NBCP, an employer or a participating professional
licensing board shall:

††††† (1) Log on to the KARES portal; and

††††† (2) Confirm acceptance of the terms and
conditions for using the KARES system.

††††† (1) To initiate the process for obtaining
a background check on a prospective employee or licensee, the employer or
participating professional licensing board shall:

††††† (a) Request that the applicant provide a
copy of his or her driverís license or other government-issued photo identification
and verify that the photograph clearly matches the applicant;

††††† (b) Request that the applicant sign the
OIG 1:190-1, Disclosures to be Provided to and Signed by Applicant for
Employment or Licensure;

††††† (c) Request that the applicant complete
the OIG 1:190-2, Waiver Agreement and Statement; and

††††† (d) Log on to the KARES portal, which
shall be a secure web-based system maintained by the cabinet, and enter the
applicantís demographic information for a check of:

††††† 1. Each registry as defined by Section 1(10)
of this administrative regulation; and

††††† 2. Available databases maintained
separately by the Kentucky Board of Medical Licensure, Kentucky Board of
Nursing, Kentucky Board of Physical Therapy, and any other available
professional licensing board with oversight of health care professionals,
including behavioral health professionals, to validate the applicantís
professional licensure status, if applicable.

††††† (2) If an applicant is cleared for hire
after a check of the registries and databases identified in subsection (1)(d)
of this section, the participating entity shall submit payment via credit or
debit card for the criminal background check.

††††† (3)(a) Until NBCP grant funds are
depleted, employers identified in Section 1(6)(a) through (j) of this
administrative regulation shall pay a fee of twenty (20) dollars for a
fingerprint-supported state and national criminal background check, which
includes the cost of the Kentucky NBCP and the fees of the Department of
Kentucky State Police and the FBI.

††††† (b) A participating entity enrolled in
the Kentucky NBCP and not identified in Section 1(6)(a) through (j) of this
administrative regulation shall pay a fee not to exceed twenty-five (25)
dollars in addition to any fees charged by the Department of Kentucky State Police
and the FBI for the actual cost of processing a fingerprint-supported state and
national criminal background check and for providing continuous assessment
services as described in Section 3(2) of this administrative regulation.

††††† (c) If an applicantís continuous
assessment period identified under Section 3 of this administrative regulation
has not expired, a fee of twenty (20) dollars shall be charged to view the
applicantís current fitness determination and process a new application, in
which case a new fingerprint check is not needed.

††††† (d)1. After NBCP grant funds are
depleted, the total cost of a fingerprint-supported state and national criminal
background check charged to an employer identified in Section 1(6) of this
administrative regulation shall not exceed actual costs of the Kentucky NBCP
and the fees charged by the Department of Kentucky State Police and the FBI for
the actual cost of processing criminal background checks and for continuous
assessments.

††††† 2. If an applicant has not been
previously fingerprinted under the Kentucky NBCP or if the applicantís
continuous assessment period has expired, a fee not to exceed twenty-five (25)
dollars shall be charged to the employer to cover the cabinet's administrative
cost for facilitating a criminal background check in addition to any fees
charged by the Department of Kentucky State Police and the FBI for a
fingerprint-supported state and national criminal background check and for
continuous assessment services as described in Section 3(2) of this administrative
regulation.

††††† (4)(a) Upon submission of payment
pursuant to subsection (3) of this section, the employer or other participating
entity shall print a copy of the Live Scan Fingerprinting Form from the KARES
portal and provide the form to the applicant.

††††† (b) The applicant shall:

††††† 1. Have thirty (30) calendar days from
the date of payment pursuant to subsection (2) of this section to submit his or
her fingerprints at an authorized collection site; and

††††† 2. Present the Live Scan Fingerprinting
Form and driverís license or other government-issued photo identification to
the designated agent at an authorized collection site prior to fingerprint
submission.

††††† (5) Upon completion of a criminal
background check, the cabinet:

††††† (a) Shall provide notice to the employer
that the applicant is:

††††† 1. Eligible for hire; or

††††† 2. Not eligible for hire if the applicant
is found by the cabinet to have a disqualifying offense as identified in
Section 1(4) of this administrative regulation;

††††† (b) May release any record of state criminal
history found in the files of the Kentucky centralized criminal history record
information system to the employer or entity listed on the OIG 1:190-2, Waiver
Agreement and Statement incorporated by reference in Section 14 of this
administrative regulation; and

††††† (c) Shall, upon receipt of a written
request from an applicant, send a copy if any of a KSP or FBI criminal history
report to the applicant by certified mail, restricted delivery service. The
applicant shall show proof of identity and sign to receive his or her criminal
history report from the local post office.

††††† (6) An employer shall not be obligated to
employ or offer employment to an individual who has been found by the cabinet
to be eligible for hire pursuant to subsection (5)(a) of this section.

††††† Section 6. Provisional Employment. (1) If
an applicant is not found on a registry and the individualís license has been
validated, if applicable, an employer may hire the applicant for a period of
provisional employment pending completion of the criminal background check.

††††† (2) The period of provisional employment
shall:

††††† (a) Not commence prior to the date the
applicant submitted his or her fingerprints; and

††††† (b) Not exceed sixty (60) calendar days
from the date of fingerprint collection.

††††† (3) During the period of provisional
employment, the individual shall not have supervisory or disciplinary power or
routine contact with patients, residents, or clients without supervision
on-site and immediately available to the individual.

††††† Section 7. Individuals Ineligible to be
Hired. An employer participating in the KARES program, an agency within the
cabinet responsible for conducting inspections of any employer, or a
state-owned or operated health facility shall not employ, contract with, or
permit to work as an employee any applicant that submits to a background check
if one (1) or more of the following are met:

††††† (1) The applicant refuses to provide
photo identification or complete the Disclosures Form or Waiver Agreement and
Statement Form required by Section 5(1) (b) and (c) of this administrative
regulation;

††††† (2) The applicant is found on a registry
as defined by Section 1(10) of this administrative regulation;

††††† (3) The applicantís professional license
is not in good standing, if applicable;

††††† (4) The applicant fails to submit his or
her fingerprints at an authorized collection site within thirty (30) calendar
days of payment submitted pursuant to Section 5(3) of this administrative
regulation; or

††††† (5) Upon completion of the initial
criminal background check for an applicant, or subsequent to the initial
fingerprint check on a current employee, the employer, cabinet agency, or
state-owned or operated health facility receives notice from the cabinet that
the applicant is not eligible for hire based on a cabinet determination that
the individual has been found to have a disqualifying offense.

††††† Section 8. Notice of a Disqualifying
Offense and Appeals. (1) The cabinet shall notify each applicant or current
employee determined to have a disqualifying offense.

††††† (2) In addition to the cabinetís
notification required by subsection (1) of this section, an employer that
receives notice from the cabinet that an individual has been determined to have
a disqualifying offense shall notify the individual of the cabinetís determination
within three (3) business days of receipt of the notice.

††††† (3) An applicant or current employee who
receives notice of a disqualifying offense may:

††††† (a) Challenge the accuracy of the
cabinetís determination regarding a disqualifying offense by submitting a
written request for informal review, including any information the applicant
wishes to be considered, to the Office of Inspector General, Cabinet for Health
and Family Services, 275 East Main Street, 5E-A, Frankfort, Kentucky 40621,
within ten (10) calendar days of the date of notice of the disqualifying
offense; or

††††† (4) Upon completion of an informal review
if requested pursuant to subsection (3)(a) of this section, the Office of
Inspector General shall within ten (10) calendar days of receipt of the request
provide written notice to the applicant or employee of the cabinet's decision
to uphold or rescind the notice of the disqualifying offense.

††††† (5) An applicant or current employee may
appeal the results of an informal review or a rehabilitation review conducted
in accordance with Section 10 of this administrative regulation by submitting a
written request for an administrative hearing within thirty (30) calendar days
from the date of notice of the decision from an informal review or
rehabilitation review.

††††† (6)(a) A written request for an
administrative hearing shall be mailed to the Office of Ombudsman, Cabinet for
Health and Family Services, 275 East Main Street, 1E-B, Frankfort, Kentucky
40621.

††††† (b) The administrative hearing shall be
held no later than forty-five (45) calendar days from the date that the request
is received by the Office of Ombudsman unless the applicant or employee agrees
to a later date.

††††† (c) The issues considered at the hearing
shall be limited to the issues directly raised and considered during the
informal review or rehabilitation review.

††††† (f) The secretary or designee shall issue
a final order pursuant to KRS 13B.120.

††††† (7) If an applicant or current employee
wishes to challenge the accuracy of a criminal background check, the cabinet
shall refer the individual to the appropriate state or federal law enforcement
agency.

††††† (8) If an applicant or current employee
challenges the finding that he or she is the true subject of the results from a
registry check, the cabinet shall refer the individual to the agency
responsible for maintaining the registry.

††††† Section 9. Termination of an Employee
Upon Receipt of Notice of a Disqualifying Offense. (1) If a provisional
employee or current employee has not requested an informal review or a
rehabilitation review pursuant to Section 8(3) of this administrative
regulation, the employer shall:

††††† (a) Terminate the employee no later than
fifteen (15) calendar days after receipt of notice of the disqualifying
offense; and

††††† (b) Use the KARES system to provide
electronic notification to the cabinet affirming the employeeís dismissal
within three (3) business days of termination.

††††† (2)(a) If a provisional employee or
current employee requests an informal review or a rehabilitation review
pursuant to Section 8(3) of this administrative regulation, the employer:

††††† 1. May retain the employee pending
resolution of the employee's informal review or rehabilitation review; and

††††† 2. Shall ensure that the employee is:

††††† a. Subject to direct, on-site
supervision; or

††††† b. Reassigned to duties that do not
involve one-on-one contact with a resident, patient, or client of the employer.

††††† (b) An employer shall terminate the
employee if the:

††††† 1. Informal review upholds the cabinet's
determination of a disqualifying offense or the rehabilitation review committee
does not grant a waiver; and

††††† 2. The employee does not request an
administrative hearing in accordance with Section 8(5) of this administrative
regulation, in which case the employer shall terminate the employee no later
than the thirty-first calendar day following written notice of the results of
the informal review or rehabilitation review.

††††† (c) If an employee requests an
administrative hearing to appeal the decision from an informal review or
rehabilitation review, the employer:

††††† 1. May retain the employee pending
resolution of the appeal if the employee:

††††† a. Remains subject to direct, on-site
supervision; or

††††† b. Is reassigned to duties that do not
involve one-on-one contact with a resident, patient, or client; and

††††† 2. Shall terminate the employee as soon
as practicable upon issuance of a final order if the employee does not prevail.

††††† (d) Using the KARES system, the employer
shall provide electronic notification to the cabinet affirming the individual's
dismissal within three (3) business days of termination.

††††† Section 10. Rehabilitation Review. (1)(a)
An applicant or employee found to have a disqualifying offense upon completion
of the criminal background check shall be eligible for consideration of
rehabilitation under an independent review process.

††††† (b) Consideration of a disqualifying
offense under the rehabilitation review process described in this section shall
not apply to:

††††† 1. A disqualifying felony offense that
occurred less than seven (7) years prior to the date of the criminal background
check;

††††† 2. Any disqualifying felony or
misdemeanor offense related to abuse, neglect, or exploitation of an adult
defined by KRS 209.020(4) or child, or a sexual offense;

††††† 3. Registration as a sex offender under
federal law or under the law of any state; or

††††† 4. Any person who is a violent offender
as defined by Section 1(12) of this administrative regulation.

††††† (2)(a) An applicant or employee may
submit a written request for a rehabilitation review to the cabinet no later
than fourteen (14) calendar days from the date of the notice of the cabinetís
determination issued pursuant to Section 8(1) of this administrative regulation
regarding a determination of a disqualifying offense.

††††† (b) If an applicant or employee requests
a rehabilitation review, the employee may be retained on staff and shall be
subject to termination in accordance with Section 9(2) of this administrative
regulation.

††††† (3) The request for a rehabilitation
review shall include the following information:

††††† (a) A written explanation of each
disqualifying offense, including:

††††† 1. A description of the events related to
the disqualifying offense;

††††† 2. The number of years since the
occurrence of the disqualifying offense;

††††† 3. The age of the offender at the time of
the disqualifying offense; and

††††† 4. Any other circumstances surrounding
the offense;

††††† (b) Official documentation showing that
all fines, including court-imposed fines or restitution, have been paid or
documentation showing adherence to a payment schedule, if applicable;

††††† (c) The date probation or parole was
satisfactorily completed, if applicable; and

††††† (d) Employment and character references,
including any other evidence demonstrating the ability of the individual to
perform the employment responsibilities and duties competently.

††††† (4) A rehabilitation review shall be
conducted by a committee of three (3) employees of the cabinet, none of whom:

††††† (a) Is an employee of the Office of
Inspector General; or

††††† (b) Was responsible for determining that
the individual has a disqualifying offense.

††††† (5) The committee shall consider the
information required under subsection (3) of this section, and shall also
consider mitigating circumstances including:

††††† (a) The amount of time that has elapsed
since the disqualifying offense;

††††† (b) The lack of a relationship between
the disqualifying offense and the position for which the individual has
applied; and

††††† (c) Evidence that the applicant has
pursued or achieved rehabilitation with regard to the disqualifying offense.

††††† (6) No later than thirty (30) calendar
days from receipt of the written request for the rehabilitation review, the
Office of Inspector General shall send the committee's determination on the
rehabilitation waiver to the applicant.

††††† (7) The decision of the committee shall
be subject to appeal in accordance with Section 8(5) and (6) of this
administrative regulation.

††††† (8) An employer shall not be obligated to
employ or offer employment to an individual who is granted a waiver pursuant to
this section.

††††† Section 11. Pardons and Expungement. An
applicant who has received a pardon for a disqualifying offense or has had the
record expunged may be employed.

††††† Section 12. Status of Employment. An
employer participating in KARES shall maintain the employment status of each
employee who has submitted to a fingerprint-supported criminal background check
by reporting the status using the KARES web-based system.

††††† Section 13. Kentucky National Background
Check Fund. (1)(a) The cabinet shall establish a trust and agency fund called
the Kentucky National Background Check fund to be administered by the Finance
and Administration Cabinet.

††††† (b) The fund shall be funded with moneys
collected under Section 5(3) of this administrative regulation.

††††† (2) Moneys in the fund shall be used
solely to operate the Kentucky National Background Check program.

††††† Section 14. Incorporation by Reference.
(1) The following material is incorporated by reference:

††††† (a) OIG 1:190-1, "Disclosures to be
Provided to and Signed by Applicant for Employment or Licensure",
September 2016;